When Hate Goes Unpunished

Hate speech and hate writing for several weeks before violence erupts are the time-tested tactics used by perpetrators of communal violence. Such writing or speeches are a violation of Indian criminal law, specifically sections 153(a), 153(b), 505 of the Indian Penal Code and Section 295 of the Code of Criminal Procedure.

In Bombay in 1992 and in 1993, the Shiv Sena chief Bal Thackeray used the newspaper he edited Saamna to foment hatred and violence against Muslims. Such writings were consistent and vicious being published from July 1992 onwards right into January 1993 and beyond. The Maharashtra government refused to act; the Bombay police was similarly weak-kneed. Despite brazen provocations to the Courts, none of the higher judiciary ever initiated suo moto, action against Bal Thackeray or the Saamna.

In 1993, two citizens of Bombay, Dilip Thakore and JB De’Souza petitioned the Bombay High Court, laden with all this evidence, urging for a directive from the Court for the registration of an FIR against Thackeray. The trajectory of this case is noteworthy, and also a sorry comment on the judiciary. In September 1994, the Bombay High Court (division bench) dismissed the petition passing a detailed judgement exonerating Thackeray. Worse they commented that his vitriol was directed at “anti-national Muslims” and therefore condoned. The petitioners through their advocate Atul M. Setalvad went to the Supreme Court through a special leave petition. Shockingly this was dismissed without fair hearing. A signature campaign backed by thousands of citizens tried to effect a review, unsuccessfully.

Communalism Combat’s January 1995 issue carries the legal opinion of constitutional expert, HM Seervai and other jurists, Fali Nariman, Nani Palkhiwala, Soli Sorabjee, Hosbet Suresh on the Supreme Court’s decision. The record of our Court’s in prosecuting hate speech and hate writing has been poor.